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The motor vehicle accident that’s not your fault

I am an SES volunteer and a few days ago, during training the question was raised at what happens if, under EVS and going through a green light (within or outside the speed limit) you get t boned by somebody driving through a red light.

My opinion is that, if you are driving through a green light, EVS or not, you are in the right if somebody hits you.

I’m told that EVS means “Emergency Vehicle Status ie: lights and sirens on.” The scenario described in this question sounds much like the scenario discussed in the post No Liability for NSW Ambulance Accident (October 19, 2016) save in that scenario the ambulance was proceeding into the intersection against the red light, and the oncoming car had a green light.

This question relates to travelling through a green light and getting collected by another driver who comes through a red light. In those circumstances the other driver has a dual obligation to give way. “A driver approaching or at traffic lights showing a red traffic light must stop—…” (Road Safety Road Rules 2009 (Vic) r 56) and “A driver must give way to a police vehicle, emergency vehicle, enforcement vehicle or escort vehicle that is displaying a flashing blue, red or magenta light (whether or not it is also displaying other lights) or sounding an alarm” (r 79).

We know however that just because you have a green traffic light you cannot simply drive through it without having regard to other traffic because we know sometimes vehicles don’t give way and some vehicles may intend to proceed through a red light – eg an emergency vehicle. Hine v O’Conner [1951] SASR 1 involved a collision between a bus and a fire appliance. The bus driver knew that traffic coming from the direction of the fire appliance were facing a stop sign. Abbott J said (at pp 4-5):

He [the bus driver] was not, however, entitled to consider himself as having “an open road” across that intersection because a “Stop Sign” is not always obeyed by drivers of vehicles; and, as he admitted in cross-examination, he has himself had the experience of other drivers disobeying such signs … And, of course, O’Connor is presumed to know the law that fire-engines on their way to a fire, as well as other specified vehicles, are exempt from the duty of obeying such “Stop Signs.” Despite the existence of a “Stop Sign” at an intersection, it may become the duty of a reasonable driver in O’Connor’s situation to “give way” to another vehicle whose driver has disobeyed the “Stop Sign.”

Equally a driver, including the driver of an emergency vehicle is not entitled to think they have an ‘open road’ just because they have a green light and by inference other traffic must have a red signal.

I can imagine two situations, as shown below.

In situation 1 the car has driven through the red light and collided with the emergency service vehicle that is already in the intersection. That has got to be the car driver’s fault.

In situation 2 the emergency service vehicle has collided with the car that is already in the intersection. Consistent with the decision in Hine v O’Conner there could be some responsibility attributed to the driver of the emergency service vehicle because even though they had right-of-way, it must have been apparent at some point that the car was not going to give way so there would be some way to avoid the accident, eg by slowing down.

In civil law fault can be apportioned, so in situation 2 you might say it was ‘10% the emergency vehicle driver’s fault and 90% the car driver’ (or some such proportion – see Wrongs Act 1958 (Vic) s 26). Criminal law is not like that, in criminal law one or both persons may be ‘at fault’ but that doesn’t determine the guilt of the other. In situation 2, above, the driver of the car could be guilty of the offences mentioned above (that is Road Safety Road Rules 2009 (Vic) rr 56 and 78). The driver of the emergency service vehicle could only be guilty of something if the circumstances were so extreme that even with the green light and the flashing lights and beacons on, it was so unreasonable to enter the intersection as to constitute gross negligence – that is ‘such a marked departure from the standard of care that the reasonable person would have exercised, that it merits criminal punishment’ (see Further Prosecution over Fatal RFS Accident (August 17, 2016)). It’s hard to imagine what those circumstances could be, but it is theoretically possible.

Conclusion

Even when proceeding through a green light, and even with emergency lights and sirens on, there is some obligation to be aware of other traffic, but in the situation described to me the emergency vehicle is ‘t-boned’ by somebody driving through a red light’, that is situation 1, above. Prima facie the car driver will be ‘at fault’ so that’s the end of the issue. One would expect that driver would, at least, get a traffic infringement notice. Anyone who is injured in that accident would have whatever rights they may have against the driver at fault, noting that in Victoria at least, compensation for injuries in a motor vehicle accident do not require the injured person to prove fault (Transport Accident Act 1986 (Vic) s 35).

So what happens? Naturally the police will investigate matters and there may well be a dispute as to who had the red light and who had the green, but assuming the evidence shows that indeed the emergency vehicle had the green light, then I suppose nothing happens as a matter of law. No doubt there might be questions asked at agency level to determine if there are lessons to be learned from the event and if someone were to die there might be a coronial hearing to see if there are any lessons to be learned; but for the agency and driver if there is no fault, there are no legal consequences..